GLAA testifies on proposed school harassment regulations

Testimony of the
Gay and Lesbian Activists Alliance of Washington, DC
Before the
Committee on Special Education and Student Services
District of Columbia Board of Education

On the
Proposed Rulemaking on Harassment

February 6, 2002

My name is Bob Summersgill. I am President of the Gay and Lesbian Activists
Alliance of Washington, DC (GLAA), the oldest continuously active gay and
lesbian civil rights organization in the country.

Thank you for the opportunity to comment on the proposed regulations. As you
may be aware, GLAA's first lobbying success was persuading the DC Board of
Education in May 1972 to ban discrimination on the basis of sexual orientation
throughout the public school system. We have been involved in a number of other
issues involving the school system over the past 30 years.

GLAA began urging the DC Public Schools to adopt a policy to protect students
from harassment in August 1999. This led to Superintendent Arlene Ackerman's
Directive on March 29, 2000 on harassment and sexual harassment against
students.

The regulations before us will finally fulfill the promise of the Directive. In
general, the proposed regulations are very good and represent a significant
improvement for the District Schools and will be a great help to students who
face harassment.

There are a few changes that will improve the regulations.

The period of time in which to file a complaint is 5 days since the last
incident. However, it may take significantly longer than 5 days to deal with
the emotional difficulties of harassment or sexual harassment, let alone figure
out how to file a complaint. This needs to be extended.

Students are under considerable pressure without harassment. In a case of
harassment or sexual harassment, there will be emotional trauma involved of
some nature and at some level or degree, and that is always
inefficiency-producing. Adequate time must be allowed for things to sort
themselves out before filing.

Students are also not always free agents in these matters. Parents often stand
in the middle as intermediaries, and there will almost always have to be some
sort of consultation/interaction process between student and parent, consistent
with the individual familial structure, before anything ever becomes
formalized-and many parents will not be initially receptive, if ever.

In 1996, the Ashland Wisconsin Public School District lost nearly one million
dollars after the school ignored student brutality against James Nabozny. And
Justice Sandra Day O'Connor, writing for the majority in Davis v. Monroe County
Board of Education, (97-843, May 24, 1999), said lawsuits may be filed against
school officials who knowingly and deliberately ignore student-on-student
harassment. This year the Titusville, Pennsylvania school district will pay
$312,000 to settle a lawsuit brought by a gay teenager who said officials did
nothing to stop other students from tormenting him. Timothy Dahle, now 19, said
he was pushed down a set of stairs and subjected to other physical assaults as
well as name-calling and obscene jokes. Dahle said he was harassed beginning in
sixth grade in 1994 and was so depressed over school that he attempted suicide
in 1998.

The issue in all of these cases is the school knowingly and deliberately
ignoring harassment of a student. It would be easy to argue that the 5-day
period is a structural way to ignore student complaints of harassment. DCPS
should at least attempt to avoid a lawsuit by erring on the side of caution in
cutting off the right to make a complaint.

While any limit on the time to file a complaint is essentially arbitrary, it
makes sense to look at existing DC law and regulations for guidance. The most
relevant time period to file a complaint is in the DC Municipal Regulations
Title 4, Chapter 1: "Complaints of Discrimination in the District of Columbia
Government." Section 105.1 allows 180 calendar days to file a complaint. In the
case of alleged discrimination in the public sector, Chapter 7, Section 702.1
provides one year to file a complaint.

Students should not receive less time to file a complaint than DC employees.
Erring on the side of caution to protect students will both help students and
help insulate the District from lawsuits by students whose complaints are
ignored because they took too long to file.

This affects sections 807(a) and 2405.4(1)(e).

When listing the categories on which harassment is prohibited, the words
"actual or perceived" need to be added before the list to conform to the
pending changes in the DC Human Rights Act and to insure that harassment made
in error is not excusable. Students are commonly harassed because someone
mistakenly believes that they are gay. This is no more excusable than if the
student is in fact gay. Hindus and Sikhs have recently been subject to
harassment and worse when thought to be Muslim. The question of applicability
of the harassment regulations should not depend on a victim's actual sexual
orientation, religion, etc., but rather on the basis and motivation of the
discriminatory action.

This affects sections 1401.2 (x) and 2503.3 (g).

Sections 2002.5 and 2401.4 insure that copies of the regulations in the form of
the Student Bill of Rights are provided to every student at registration. It is
not clear to us if this is an annual event, or just the initial time that a
student enters the DCPS system. Annual presentation of the Student Bill of
Rights should be a minimum. Additional instruction of student rights should be
made verbally every year to all students in school assemblies or as part of
their curriculum in health classes, or other appropriate venues. It is not
reasonable to think that all students will read everything, even if that is
reasonable and legally sufficient for adults.
Section 2401.1 mandates that a "copy of the rules of the Board of Education
shall be maintained in the library or other appropriate place in each public
school in the District of Columbia." This is good, but copies of the Student
Bill of Rights also need to be available in the guidance counselors' offices
where students and teachers will presumably look for help with harassment.

Additionally, there is a typographical error in section 2002.5. The word
"shall" is repeated.

We do thank the School Board for taking harassment against students seriously
and developing these regulations. They will be an important part in making DC
Public Schools a safer place for our students.

Thank you.

###

[Addendum by Bob Summersgill:
The nature of the Workshop precluded reading of testimony, however,
we had extensive conversations over two hours in which all of our concerns were
addressed. James Baxley, the Deputy General Counsel of DCPS who wrote the regs, spoke at
length with Donn Cohen of the ACLU of the National Capital Area; two lawyers
from the US Dept of Education, Office of Civil Rights; Tommy Wells, Laura Gardner,
and Singleton of the DCPS Board; and myself among others whose names I didn't
catch from a couple of other education related groups.

Donn Cohen got into minutiae of appellate level case law which does not apply to
DC, but might be used to strike down parts of the regs on first amendment
grounds. Donn had wording which would protect the regulations from that and
comply with other case law.

All of our concerns were dealt with as constructive criticisms. Tommy Wells
pulled me aside to see if GLAA was ok with the ACLU proposed language. After I
explained that we weren't trying to stop simple name calling, which has first
amendment protections, Wells relaxed about the ACLU's proposals.

I did point out, after having previously missed it, that the list of protected
categories (under the DC Human Rights Act) is the employment list and not the
education list. Baxley didn't really want to take anything out, and said that
he took the list from the Superintendent's Directive, but I pointed out that
"matriculation" is a reasonable thing for schools to discriminate on. Everyone agreed.

On the filing period, Baxley said that he didn't intend the five days to be a
restriction, but more of a guideline. However, since a number of us had the
same concern, he agreed that it was giving an impression that was quite
unintended. "This is the reason we are having this workshop" was his comment
on a number of occasions.

I expect that he will make all the changes that we and the ACLU have proposed,
or at worst with slight changes. I am very happy with how everything went.

Most of the meeting was small break-out groups with DCPS students discussing
implementation issues that would not go directly to the regs. The students
mentioned:

A number of students said that they would not be comfortable talking to
teachers or the principal. They suggested an alternative for a complaint
process in which they would go to other students. Baxley and I agreed (but
did not respond to the students) that since the schools are liable for the
harassment of students it is too problematic to delegate that responsibility.

Here is the written testimony that I submitted. Baxley was pleased to have
written comments from GLAA and ACLU.]